Bill Text: CA AB2087 | 2015-2016 | Regular Session | Chaptered
Bill Title: Regional conservation investment strategies.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2016-09-22 - Chaptered by Secretary of State - Chapter 455, Statutes of 2016. [AB2087 Detail]
Download: California-2015-AB2087-Chaptered.html
BILL NUMBER: AB 2087 CHAPTERED
BILL TEXT
CHAPTER 455
FILED WITH SECRETARY OF STATE SEPTEMBER 22, 2016
APPROVED BY GOVERNOR SEPTEMBER 22, 2016
PASSED THE SENATE AUGUST 31, 2016
PASSED THE ASSEMBLY AUGUST 31, 2016
AMENDED IN SENATE AUGUST 31, 2016
AMENDED IN SENATE AUGUST 19, 2016
AMENDED IN SENATE AUGUST 16, 2016
AMENDED IN SENATE AUGUST 1, 2016
AMENDED IN SENATE JUNE 22, 2016
AMENDED IN ASSEMBLY MAY 31, 2016
AMENDED IN ASSEMBLY APRIL 5, 2016
INTRODUCED BY Assembly Member Levine
FEBRUARY 17, 2016
An act to add Chapter 9 (commencing with Section 1850) to Division
2 of the Fish and Game Code, relating to fish and wildlife.
LEGISLATIVE COUNSEL'S DIGEST
AB 2087, Levine. Regional conservation investment strategies.
Existing law establishes the Department of Fish and Wildlife in
the Natural Resources Agency. Under existing law, the department has
jurisdiction over the conservation, protection, and management of
fish, wildlife, native plants, and habitat necessary for biologically
sustainable populations of those species. The California Endangered
Species Act prohibits the taking of an endangered, threatened, or
candidate species, except as specified. Under the act, the department
may authorize the take of listed species if the take is incidental
to an otherwise lawful activity and the impacts are minimized and
fully mitigated. Existing law prohibits an entity from substantially
diverting or obstructing the natural flow of, or substantially
changing or using any material from the bed, channel, or bank of, any
river, stream, or lake, or from depositing certain material where it
may pass into any river, stream, or lake, without first notifying
the department of that activity, and entering into a lake or
streambed alteration agreement if required by the department to
protect fish and wildlife resources.
This bill would authorize the department, or any other public
agency, to propose a regional conservation investment strategy, to be
developed in consultation with applicable local agencies that have
land use authority, for the purpose of informing science-based
nonbinding and voluntary conservation actions and habitat enhancement
actions that would advance the conservation of focal species and
providing voluntary nonbinding guidance for various activities. The
bill would authorize the department to approve a regional
conservation investment strategy only if one or more state agencies
request approval of the strategy through a letter sent to the
Director of Fish and Wildlife, as prescribed. The bill would require
the strategy to contain specified information and would authorize the
strategy to include a regional conservation assessment proposed by
the department or any other public agency and approved by the
department. The bill would authorize the department to approve a
regional conservation investment strategy or amended strategy for an
initial period of up to 10 years after a public meeting and a public
comment period regarding the proposed strategy or amended strategy
have been held and after it finds that the strategy meets certain
requirements. The bill would authorize a conservation action and a
habitat enhancement action that measurably advance the conservation
objectives of an approved strategy and that meet other specified
requirements to be used to create mitigation credits. The bill would
authorize these mitigation credits to be used to fulfill compensatory
mitigation requirements established under any state or federal
environmental law, as determined by the applicable local, state, or
federal regulatory agency, including compensatory mitigation
requirements to compensate for take or other adverse impacts of
activities authorized pursuant to the California Endangered Species
Act, to reduce adverse impacts to fish or wildlife resources, or
both, from activities authorized pursuant to a lake or streambed
alteration agreement to less than substantial, or to mitigate
significant effects on the environment pursuant to the California
Environmental Quality Act. To create these mitigation credits, the
bill would require a person or entity to enter into a mitigation
credit agreement with the department that meets specified
requirements. The bill would prohibit the release of mitigation
credits for use, sale, or transfer under a mitigation credit
agreement unless the department approves the release in accordance
with certain requirements. The bill would require the department to
collect fees or other compensation from a person or entity that
proposes to enter into a mitigation credit agreement, and from a
public agency that proposes a strategy or a regional conservation
assessment, to pay for all or a portion of the department's costs
relating to the mitigation credit agreement, proposed strategy, or
proposed regional conservation assessment. The bill would authorize
the department to adopt guidelines and criteria to aid in the
implementation of these provisions and would exempt the adoption of
these guidelines and criteria from the Administrative Procedure Act.
The bill would require the department to submit a report regarding
the implementation of these provisions to the Legislature on or
before January 1, 2020. The bill would prohibit the department from
approving more than 8 regional conservation investment strategies
before January 1, 2020, and would prohibit the department from
approving a regional conservation investment strategy or regional
conservation assessment on or after January 1, 2020, and from
entering into a mitigation credit agreement on or after January 1,
2020.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The purpose of Chapter 9 (commencing with Section 1850)
of Division 2 of the Fish and Game Code is to create a pilot
regional conservation investment strategy program through January 1,
2020, to identify regional conservation and conservation investments,
and aid the development of critical infrastructure through an open
public process and using a science-based approach while also
encouraging investments in conservation through advance mitigation.
SEC. 2. Chapter 9 (commencing with Section 1850) is added to
Division 2 of the Fish and Game Code, to read:
CHAPTER 9. ADVANCE MITIGATION AND REGIONAL CONSERVATION
INVESTMENT STRATEGIES
1850. (a) The Legislature finds and declares that it would be
beneficial to identify species and habitat conservation initiatives
at a regional scale, including actions to address the impacts of
climate change and other wildlife stressors, in order to guide
voluntary investments in conservation, and compensatory mitigation
for impacts to ecological resources, including impacts to threatened
and endangered species, other sensitive species, natural communities,
ecological processes, and wildlife corridors.
(b) The purpose of this chapter is to promote the voluntary
conservation of natural resources, including biodiversity and
ecological processes, and to enhance resiliency to climate change and
other threats. In order to further this goal, it is the policy of
the state to encourage voluntary mechanisms to conserve biological
and other ecological resources and to identify conservation actions,
including actions to promote resiliency to the impacts of climate
change and other stressors to species and habitat.
(c) It is further the policy of the state to encourage voluntary
mechanisms to identify and implement advance mitigation actions that
do all of the following:
(1) Can be used to compensate for project impacts, including, but
not limited to, infrastructure and renewable energy projects, more
efficiently.
(2) Are effective ecologically.
(3) Will help to conserve regionally important biological and
other ecological resources.
(d) In enacting this chapter, it is the intent of the Legislature
to promote science-based conservation, including actions to promote
resiliency to the impacts of climate change and other stressors. It
is further the intent of the Legislature to create nonregulatory
mechanisms to guide investments in conservation, infrastructure, and
compensatory mitigation for impacts to natural resources, including
impacts to threatened and endangered species, other sensitive
species, natural communities, ecological processes, and connectivity.
(e) In enacting this chapter, it is not the intent of the
Legislature to regulate the use of land, establish land use
designations, or to affect, limit, or restrict the land use authority
of any public agency.
(f) Further, in enacting this chapter, it is not the intent of the
Legislature that an approved regional conservation investment
strategy would be binding on independent public agency action within
the strategy's geographic scope.
1851. For purposes of this chapter:
(a) "Administrative draft natural community conservation plan"
means a substantially complete draft of a natural community
conservation plan that is released after January 1, 2016, to the
general public, plan participants, and the department.
(b) "Areas of Conservation Emphasis" means the biodiversity
analysis completed by the department in 2010, or the latest update of
that analysis.
(c) "Compensatory mitigation" means actions taken to fulfill, in
whole or in part, mitigation requirements under state or federal law
or a court mandate.
(d) "Conservation action" means an action to preserve or to
restore ecological resources, including habitat, natural communities,
ecological processes, and wildlife corridors, to protect those
resources permanently, and to provide for their perpetual management,
so as to help to achieve one or more biological goals and objectives
for one or more focal species. Conservation actions may include, but
are not limited to, actions to offset impacts to focal species.
(e) "Conservation easement" means a perpetual conservation
easement that complies with Chapter 4 (commencing with Section 815)
of Title 2 of Part 2 of Division 2 of the Civil Code.
(f) "Focal species" means sensitive species within a regional
conservation investment strategy area that are analyzed in the
strategy and will benefit from conservation actions and habitat
enhancement actions set forth in the strategy.
(g) "Habitat enhancement action" means an action to improve the
quality of wildlife habitat, or to address risks or stressors to
wildlife, that has long-term durability but does not involve land
acquisition or the permanent protection of habitat, such as improving
in-stream flows to benefit fish species, enhancing habitat
connectivity, or invasive species control or eradication.
(h) "Performance-based milestones" means specifically identified
steps in the implementation of a conservation action or habitat
enhancement action, such as site protection, initiating
implementation, completing implementation, or achieving performance
standards.
(i) "Performance standards" means observable or measurable
physical or biological attributes that are used to determine if a
conservation action or habitat enhancement action has met its
objectives.
(j) "Permanently protect" means doing both of the following:
(1) Recording a conservation easement, in a form approved in
advance in writing by the department, or establishing perpetual
protection of land in a manner consistent with draft or approved
natural community conservation plans within the area of the
applicable regional conservation investment strategy and approved in
advance in writing by the department, that prevents development,
prohibits inconsistent uses, and ensures that habitat for focal
species is maintained.
(2) Providing secure, perpetual funding for management of the
land, monitoring, and legal enforcement.
(k) "Regional conservation assessment" means information and
analyses that document the important species, ecosystems, ecosystem
processes, protected areas, and linkages within an ecoregion to
provide the appropriate context for nonbinding, voluntary
conservation strategies and actions. Those assessments include
information for the identification of areas with greatest probability
for long-term ecosystem conservation success incorporating
cobenefits of ecosystem services, such as carbon, water, and
agricultural lands. A regional conservation assessment may be used to
provide context at an ecoregional or subecoregional scale to assist
with the development of a regional conservation investment strategy.
A regional conservation assessment is nonbinding, voluntary, and does
not create, modify, or impose regulatory requirements or standards,
regulate the use of land, establish land use designations, or affect
the land use authority of, or the exercise of discretion by, any
public agency. The preparation and use of a regional conservation
assessment is voluntary.
(l) "Regional conservation investment strategy" means information
and analyses prepared pursuant to this chapter to inform nonbinding
and voluntary conservation actions and habitat enhancement actions
that would advance the conservation of focal species, habitat, and
other natural resources and to provide nonbinding voluntary guidance
for the identification of wildlife and habitat conservation
priorities, investments in ecological resource conservation, or
identification of locations for compensatory mitigation for impacts
to species and natural resources. Regional conservation investment
strategies are intended to provide scientific information for the
consideration of public agencies, are voluntary, and do not create,
modify, or impose regulatory requirements or standards, regulate the
use of land, establish land use designations, or affect the land use
authority of or exercise of discretion by, any public agency. The
preparation and use of regional conservation investment strategies
for this guidance is voluntary.
(m) "Regional level" means the geographic scale of relevant
ecologically defined units such as ecoregions.
(n) "Sensitive species" means any special status species
identified by a state or federal agency.
1852. (a) The department may approve a regional conservation
investment strategy pursuant to this chapter. A regional conservation
investment strategy may be proposed by the department or any other
public agency, and shall be developed in consultation with local
agencies that have land use authority within the geographic area of
the regional conservation investment strategy. The department may
only approve a regional conservation investment strategy if one or
more state agencies request approval of the regional conservation
investment strategy through a letter sent to the director indicating
that the proposed regional conservation investment strategy would
contribute to meeting both of the following state goals:
(1) Conservation.
(2) Public infrastructure or forest management.
(b) The purpose of a regional conservation investment strategy
shall be to inform science-based nonbinding and voluntary
conservation actions and habitat enhancement actions that would
advance the conservation of focal species, including the ecological
processes, natural communities, and habitat connectivity upon which
those focal species depend, and to provide nonbinding voluntary
guidance for one or more of the following:
(1) Identification of wildlife and habitat conservation
priorities, including actions to address the impacts of climate
change and other wildlife stressors.
(2) Investments in resource conservation.
(3) Infrastructure.
(4) Identification of areas for compensatory mitigation for
impacts to species and natural resources.
(c) A regional conservation investment strategy shall include all
of the following:
(1) An explanation of the conservation purpose of and need for the
strategy.
(2) The geographic area of the strategy and rationale for the
selection of the area, together with a description of the surrounding
ecoregions and any adjacent protected habitat areas or linkages that
provide relevant context for the development of the strategy.
(3) The focal species included in, and their current known or
estimated status within, the strategy.
(4) Important resource conservation elements within the strategy
area, including, but not limited to, important ecological resources
and processes, natural communities, habitat, habitat connectivity,
and existing protected areas, and an explanation of the criteria,
data, and methods used to identify those important conservation
elements.
(5) A summary of historic, current, and projected future stressors
and pressures in the strategy area, including climate change
vulnerability, on the focal species, habitat, and other natural
resources, as identified in the best available scientific
information, including, but not limited to, the State Wildlife Action
Plan.
(6) Consideration of major water, transportation and transmission
infrastructure facilities, urban development areas, and city, county,
and city and county general plan designations that accounts for
reasonably foreseeable development of major infrastructure
facilities, including, but not limited to, renewable energy and
housing in the strategy area.
(7) Provisions ensuring that the strategy will be in compliance
with all applicable state and local requirements and does not preempt
the authority of local agencies to implement infrastructure and
urban development in local general plans.
(8) Conservation goals and measurable objectives for the focal
species and important conservation elements identified in the
strategy that address or respond to the identified stressors and
pressures on focal species.
(9) Conservation actions, including a description of the general
amounts and types of habitat that, if preserved or restored and
permanently protected, could achieve the conservation goals and
objectives, and a description of how the conservation actions and
habitat enhancement actions were prioritized and selected in relation
to the conservation goals and objectives.
(10) Provisions ensuring that the strategy is consistent with and
complements any administrative draft natural community conservation
plan, approved natural community conservation plan, or federal
habitat conservation plan that overlaps with the strategy area.
(11) An explanation of whether and to what extent the strategy is
consistent with any previously approved strategy or amended strategy,
state or federal recovery plan, or other state or federal approved
conservation strategy that overlaps with the strategy area.
(12) A summary of mitigation banks and conservation banks approved
by the department or the United States Fish and Wildlife Service
that are located within the strategy area or whose service area
overlaps with the strategy area.
(13) A description of how the strategy's conservation goals and
objectives provide for adaptation opportunities against the effects
of climate change for the strategy's focal species.
(14) Incorporation and reliance on, and citation of, the best
available scientific information regarding the strategy area and the
surrounding ecoregion, including a brief description of gaps in
relevant scientific information, and use of standard or prevalent
vegetation classifications and standard ecoregional classifications
for terrestrial and aquatic data to enable and promote consistency
among regional conservation investment strategies throughout
California.
(d) A regional conservation investment strategy shall compile
input and summary priority data in a consistent format that could be
uploaded for interactive use in an Internet Web portal and that would
allow stakeholders to generate queries of regional conservation
values within the strategy area.
(e) In addition to considering the potential to advance the
conservation of focal species, regional conservation investment
strategies shall consider all of the following:
(1) The conservation benefits of preserving working lands for
agricultural uses.
(2) Reasonably foreseeable development of infrastructure
facilities.
(3) Reasonably foreseeable projects in the strategy area,
including, but not limited to, housing.
(4) Reasonably foreseeable development for the production of
renewable energy.
(5) Draft natural community conservation plans within the area of
the applicable regional conservation investment strategy.
1853. (a) The department may approve a regional conservation
assessment only for the purposes of a regional conservation
investment strategy pursuant to this chapter. A regional conservation
assessment may be proposed by the department or any other public
agency. However, a regional conservation assessment is not required
for department approval of a regional conservation investment
strategy.
(b) If a regional conservation assessment that encompasses the
area of a proposed regional conservation investment strategy has
already been approved by the department, the strategy shall explain
how and to what extent it has incorporated the assessment information
and analysis.
(c) A regional conservation assessment shall do all of the
following:
(1) Identify and summarize relevant regional pressures and
stressors, including climate change vulnerability, conservation areas
and habitat connectivity values, included in all of the following:
(A) Conservation plans, such as the State Wildlife Action Plan and
approved natural community conservation plans.
(B) Analyses designed to identify areas of high biological
diversity, such as the Areas of Conservation Emphasis.
(C) Analyses designed to identify areas for habitat connectivity.
(2) Identify the best available scientific information and
analyses, including geospatial information regarding the distribution
of species and natural communities.
(3) Use spatial analysis to identify ecological relationships
between existing protected areas and conservation areas.
(4) Use standard or prevalent vegetation classifications and
standard ecoregional classifications for terrestrial and aquatic data
to enable and promote consistency among regional conservation
assessments throughout California.
(5) Compile input and summary data in a consistent format that
could be uploaded for interactive use in an Internet Web portal and
that would allow stakeholders to generate queries of regional
conservation values within the strategy area.
(6) Be consistent with administrative draft natural community
conservation plans, approved natural community conservation plans,
and regional habitat conservation plans, and approved recovery plans
within the ecoregion or subecoregion included in the assessment.
(7) Consider existing major water, transportation, and
transmission infrastructure facilities in the assessment area and
account for reasonably foreseeable development of major
infrastructure facilities, including, but not limited to, renewable
energy and housing.
(8) Include provisions ensuring that the strategy will be in
compliance with all applicable state and local requirements and does
not preempt the authority of local agencies to implement
infrastructure and urban development in local general plans.
(9) Include provisions ensuring that the assessment is consistent
with and complements any approved natural community conservation plan
or regional federal habitat conservation plan that overlaps with the
assessment area.
(10) Include an explanation of whether, and to what extent, the
assessment is consistent with any previously approved assessment or
amended assessment, state or federal recovery plan, or other state or
federal approved conservation strategy that overlaps with the
assessment area.
1854. (a) The department may prepare or approve a regional
conservation investment strategy, or approve an amended strategy, for
an initial period of up to 10 years after finding that the strategy
meets the requirements of Section 1852. The department may extend the
duration of an approved or amended regional conservation investment
strategy for additional periods of up to 10 years after updating the
strategy for new scientific information and finding that the strategy
continues to meet the requirements of Section 1852. For purposes of
this section, an amended strategy means a complete regional
conservation investment strategy prepared by a public agency to amend
substantially and to replace an approved strategy submitted by the
public agency.
(b) It is the intent of this chapter to establish requirements
that provide sufficient flexibility to develop each regional
conservation investment strategy based on the best available
information regarding the strategy area.
(c) (1) A public agency shall publish notice of its intent to
create a regional conservation investment strategy. This notice shall
be filed with the Governor's Office of Planning and Research and the
county clerk of each county in which the regional conservation
investment strategy is found in part or in whole. If preparation of a
regional conservation investment strategy was initiated before
January 1, 2017, this notice shall not be required.
(2) After a draft regional conservation investment strategy or an
amendment to a strategy is submitted to the department for approval,
the department shall have 30 days within which to deem the draft
regional conservation investment strategy or an amended strategy
complete or to explain in writing to the public agency submitting the
strategy or amended strategy what is needed to complete the strategy
or amended strategy. Within 30 days of deeming a draft regional
conservation investment strategy or amended strategy complete, the
department shall make the draft strategy or amended strategy
available to the public on its Internet Web site for review and
comment for a period of at least 30 days and shall notify any public
agency, organization, or individual who has filed a written request
to the department for notices regarding draft regional conservation
strategies.
(3) (A) A public agency proposing a strategy or amended strategy
shall hold a public meeting to allow interested persons and entities
to receive information about the draft regional conservation
investment strategy or amended strategy early in the process of
preparing it and to have an adequate opportunity to provide written
and oral comments. The public meeting shall be held at a location
within or near the strategy area.
(B) In a draft regional conservation investment strategy or
amended strategy submitted to the department for approval, the public
agency shall include responses to written public comments submitted
during the public comment period.
(C) If preparation of a regional conservation investment strategy
was initiated before January 1, 2017, and a public meeting regarding
the strategy or amended strategy that is consistent with the
requirements of this section was held before January 1, 2017, an
additional public meeting shall not be required.
(D) If preparation of a regional conservation investment strategy
was initiated before January 1, 2017, and a public meeting regarding
the strategy was not held before January 1, 2017, the public meeting
required under this section may be held after January 1, 2017, if it
is held at least 30 days before the strategy is submitted to the
department for approval.
(4) At least 30 days before holding a public meeting to distribute
information about the development of a draft regional conservation
investment strategy or amended strategy, a public agency proposing a
strategy shall provide notice of a regional conservation investment
strategy or amended strategy public meeting as follows:
(A) On the public agency's Internet Web site and any relevant
LISTSERV.
(B) To each city, county, and city and county within or adjacent
to the regional conservation investment strategy area.
(C) To the implementing entity for each natural community
conservation plan or federal regional habitat conservation plan that
overlaps with the strategy area.
(D) To each public agency, organization, or individual who has
filed a written request for the notice, including any agency,
organization, or individual who has filed a written request to the
department for notices of all regional conservation investment
strategy public meetings.
(5) At least 60 days before submitting a final regional
conservation investment strategy or amended strategy to the
department for approval, the public agency proposing the investment
strategy or amended strategy shall notify the board of supervisors
and the city councils in each county within the geographical scope of
the strategy and provide the board of supervisors and the city
councils with an opportunity to submit written comments for a period
of at least 30 days.
(6) After a final regional conservation investment strategy or
amended strategy is submitted to the department for approval, the
department shall have 30 days within which to approve the final
regional conservation investment strategy or amended strategy or to
explain in writing to the public agency submitting the strategy or
amended strategy what is needed to approve the strategy or amended
strategy.
(d) The department shall make all approved regional conservation
investment strategies, including all updates to scientific
information and analyses used in a regional conservation investment
strategy and any amendments to the strategy available on its Internet
Web site.
(e) The department shall require the use of consistent metrics
that incorporate both the area and quality of habitat and other
natural resources in relation to a regional conservation investment
strategy's conservation objectives to measure the net change
resulting from the implementation of conservation actions and habitat
enhancement actions.
1855. (a) Regional conservation investment strategies shall not
affect the authority or discretion of any public agency and shall not
be binding upon public agencies other than parties to a mitigation
credit agreement. Nothing in this chapter increases or decreases the
authority or jurisdiction of the department regarding any land use,
species, habitat, area, resource, plan, process, or corridor.
Regional conservation investment strategies are intended to provide
scientific information for the consideration of public agencies.
Nothing in this chapter or any other provision of law requires any
public agency, other than a public agency that is party to a
mitigation credit agreement, to adopt, implement, or otherwise adhere
to a regional conservation investment strategy or a regional
conservation assessment.
(b) The approval or existence of a regional conservation
investment strategy, mitigation credit agreement, or credit pursuant
to this chapter does not do any of the following:
(1) Modify in any way the standards for issuance of incidental
take permits or consistency determinations pursuant to Section 2081
or 2080.1, issuance of take authorizations pursuant to Section 2835,
the issuance of lake or streambed alteration agreements pursuant to
Section 1602, or any other provision of this code or regulations
adopted pursuant to this code.
(2) Modify in any way the standards under the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code), or in any way limit a lead
agency's or responsible agency's discretion, in connection with any
determination of whether a proposed project may or may not result in
significant environmental effects or in any way establish a
presumption in connection with any determination of whether a
proposed project may or may not result in significant environmental
effects or whether a proposed project's impacts would be mitigated.
(3) Prohibit or authorize any project or project impacts.
(4) Create a presumption or guarantee that any proposed project
will be approved or permitted, or that any proposed impact will be
authorized, by any state or local agency.
(5) Create a presumption that any proposed project will be
disapproved or prohibited, or that any proposed impact will be
prohibited, by any state or local agency.
(6) Alter or affect, or create additional requirements for, the
general plan of the city, county, or city and county, in which it is
located.
(7) Constitute any of the following, for the purposes of the
California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code):
(A) A plan, policy,
or regulation adopted for the purpose of avoiding or mitigating an
environmental effect.
(B) A local policy or ordinance protecting biological resources.
(C) An adopted local, regional, or state habitat conservation
plan.
(c) Nothing in this chapter shall require a project proponent
seeking to provide compensatory mitigation pursuant to Section 1602,
2080.1, 2081, or 2835 or the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public Resources
Code) to undertake conservation actions or habitat enhancement
actions identified in a regional conservation investment strategy;
implement, contribute to, fund, or otherwise comply with the actions
described in a regional conservation investment strategy; require or
otherwise compel a project proponent to enter into a mitigation
credit agreement; or use or purchase mitigation credits established
pursuant to this chapter to satisfy the compensatory mitigation
requirements. Nothing in this section shall prevent a project
proponent from proposing mitigation consistent with one or more
strategies approved pursuant to this chapter.
(d) Mitigation credits provided by this chapter shall not be
utilized to fund or offset the costs of the design, construction, or
mitigation of new Delta water conveyance facilities.
(e) The department shall not reject biologically appropriate and
adequate compensatory mitigation proposed by a project proponent on
the basis that the compensatory mitigation is not a conservation
action or habitat enhancement identified in a regional conservation
investment strategy.
1856. (a) A conservation action or habitat enhancement action
that measurably advances the conservation objectives of an approved
regional conservation investment strategy may be used to create
mitigation credits that can be used to compensate for impacts to
focal species and other species, habitat, and other natural
resources, as provided in this section. The requirements of this
section apply only to the creation of mitigation credits under
mitigation credit agreements pursuant to this section and do not
establish requirements for other forms of compensatory mitigation.
(b) For a conservation action or habitat enhancement action
identified in a regional conservation investment strategy to be used
to create mitigation credits pursuant to this section, the regional
conservation investment strategy shall include, in addition to the
requirements of Section 1852, all of the following:
(1) An adaptive management and monitoring strategy for conserved
habitat and other conserved natural resources.
(2) A process for updating the scientific information used in the
strategy, and for tracking the progress of, and evaluating the
effectiveness of, conservation actions and habitat enhancement
actions identified in the strategy, in offsetting identified threats
to focal species and in achieving the strategy's biological goals and
objectives, at least once every 10 years, until all mitigation
credits are used.
(3) Identification of a public or private entity that will be
responsible for the updates and evaluation required pursuant to
paragraph (2).
(c) A mitigation credit created in accordance with this section
may be used to fulfill, in whole or in part, compensatory mitigation
requirements established under any state or federal environmental
law, as determined by the applicable local, state, or federal
regulatory agency, including, but not limited to, the following:
(1) To compensate for take or other adverse impacts of activities
authorized pursuant to Chapter 1.5 (commencing with Section 2050) of
Division 3 within the regional conservation investment strategy area.
(2) To reduce adverse impacts to fish or wildlife resources, or
both, from activities authorized pursuant to Chapter 6 (commencing
with Section 1600) within the regional conservation investment
strategy area to less than substantial.
(3) To mitigate significant effects on the environment within the
regional conservation investment strategy area pursuant to the
California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code) and Guidelines for
Implementation of the California Environmental Quality Act (Chapter 3
(commencing with Section 15000) of Division 6 of Title 14 of the
California Code of Regulations).
(d) The department shall ensure the long-term durability of a
habitat enhancement action. If a habitat enhancement action is used
to create one or more mitigation credits pursuant to this section,
the habitat enhancement action shall remain in effect at least until
the site of the environmental impact is returned to preimpact
ecological conditions.
(e) To create mitigation credits pursuant to this section, a
person or entity, including a state or local agency, shall enter into
a mitigation credit agreement with the department. The mitigation
credit agreement shall identify the type and number of mitigation
credits proposed to be created and the terms and conditions under
which the mitigation credits may be used. Mitigation credits shall
not be created on a site that has already been permanently protected
and has been used, or is currently in use, to fulfill compensatory
mitigation requirements for one or more projects. The person or
entity may create and use, sell, or otherwise transfer the mitigation
credits upon department approval that the credits have been created
in accordance with the agreement.
(f) To enter into a mitigation credit agreement with the
department, a person or entity shall submit a draft mitigation credit
agreement to the department for its review, revision, and approval
or disapproval. Within five days of deeming a draft agreement
complete, the department shall publish notice of the availability of
the draft agreement by filing its notice with the Governor's Office
of Planning and Research and the city and county clerks of each
county in which the agreement is applicable in part or in whole and
shall make the draft agreement available to the public on its
Internet Web site, and to any public agency, organization, or
individual who has filed a written request to the department for
notices regarding agreements, for review and comment for a period of
at least 45 days, following which the department shall respond to
written comments submitted during the public comment period and may
approve the agreement, approve it with revisions, or disapprove it.
The department may enter into a mitigation credit agreement if it
determines that the mitigation credit agreement does all of the
following:
(1) Provides contact information for, and establishes the
qualifications of, the person or entity entering into the agreement,
the entity that will manage the site of the conservation action or
habitat enhancement action, and any contractors or consultants.
(2) Fully describes the proposed conservation actions or habitat
enhancement actions and explains how, and to what extent, they will
measurably advance conservation objectives of the regional
conservation investment strategy that have not yet been achieved.
(3) Identifies the location of the conservation actions or habitat
enhancement actions, including a location map, address, and size of
the site where the proposed conservation action or habitat
enhancement action will be implemented.
(4) Provides color aerial and ground-level photographs that
reflect current conditions on the site and surrounding properties.
(5) Explains how the mitigation credits will be created,
including, but not limited to, information regarding proposed
ownership arrangements, long-term management strategy, and any phases
of implementation.
(6) Identifies mitigation banks and conservation banks approved by
the department as a mitigation alternative and explains how
available mitigation credits at those banks will be purchased or used
in combination with the mitigation credits created under the
mitigation credit agreement or, if those available mitigation credits
will not be purchased or used, why they will not be purchased or
used.
(7) Includes a natural resources evaluation that documents biotic
and abiotic baseline conditions, including past, current, and
adjacent land uses, vegetation types, species information,
topography, hydrology, and soil types.
(8) Identifies public lands and permanently protected lands in the
vicinity of the conservation actions or habitat enhancement actions.
(9) Fully describes the proposed type and quantity of mitigation
credits and the supporting rationale. Mitigation credits created
pursuant to this section shall directly correlate to the focal
species and other species, habitat, and other natural resources
protected by the conservation actions or habitat enhancement actions.
(10) Identifies metrics or indicators by which the proposed
conservation action or habitat enhancement action's contribution to
achieving the strategy's conservation goals and objectives can
feasibly be measured with existing technology. The net ecological
gain from the implementation of conservation actions and habitat
enhancement actions that include habitat restoration shall be
reported using consistent metrics that measure the increment of gain
in the area and quality of habitat or other natural resource values
compared to baseline conditions described in the regional
conservation investment strategy, and measures the increment of gain
in relation to the regional conservation investment strategy's
conservation objectives.
(11) Describes the proposed landownership of the site or sites of
the conservation actions or habitat enhancement actions.
(12) Includes a template conservation easement, or other
instrument providing for perpetual protection of land in a manner
consistent with approved natural community conservation plans within
the area of the applicable regional conservation investment strategy,
for the sites of any conservation action and an explanation of how
the long-term durability of the sites of any habitat enhancement
actions will be ensured.
(13) Ensures that the implementation of the conservation action or
habitat enhancement action will be adequately funded and that
long-term protection and management of the site will be funded in
accordance with Chapter 4.6 (commencing with Section 65965) of
Division 1 of Title 7 of the Government Code or, if a state agency
proposed to enter into a mitigation credit agreement, other
comparable funding mechanism approved by the department in accordance
with an adopted statewide policy regarding funding for long-term
management and operations of mitigation sites.
(14) Includes a template monitoring and long-term adaptive
management plan.
(15) Explains the terms and conditions under which the proposed
mitigation credits may be sold or otherwise transferred and how the
proposed mitigation credits will be accounted for, including the
specific methods proposed for reporting and maintaining a record of
credit creation, release, and use, sale, or transfer.
(16) Includes enforcement provisions.
(17) Ensures that, for each site on which the conservation actions
or habitat enhancement actions will be implemented, information
consistent with, pursuant to this chapter, the information required
for a mitigation bank in paragraph (2) of subdivision (b) of Section
1798 and subparagraphs (B) to (H), inclusive, of paragraph (2) of
subdivision (a) of Section 1798.5 shall be prepared and submitted to
the department for review for adequacy and approval prior to
implementation.
(18) Includes a proposed credit ledger and credit release schedule
that meets the requirements of subdivision (g).
(g) (1) The release of mitigation credits for use, sale, or
transfer under a mitigation credit agreement shall require the
department's approval in accordance with this subdivision.
(2) The release of mitigation credits shall be tied to
performance-based milestones and achievement of ecological
performance standards. The credit release schedule for each
mitigation credit agreement shall reserve a substantial share of the
total credits for release after those ecological performance
standards are fully achieved. Performance-based milestones shall
include, but are not be limited to, the following:
(A) Recording a conservation easement consistent with approved
natural community conservation plans within the area of the
applicable regional conservation investment strategy on the site of a
conservation action, or putting into place measures that ensure the
long-term durability of a habitat enhancement action in accordance
with subdivision (d).
(B) Completing construction of a habitat restoration action.
(C) Achieving temporal ecological performance standards for
habitat restoration, such as standards established for one year,
three years, or five years following the initiation of habitat
restoration.
(D) Fully achieving ecological performance standards.
(3) The terms of the credit release schedule shall be specified in
the mitigation credit agreement. When conservation actions and
habitat enhancement actions are implemented and meet the
performance-based milestones specified in the credit release
schedule, credits shall be created in accordance with the credit
release schedule. If a conservation action or habitat enhancement
action does not meet performance-based milestones, the department may
suspend the release of credits, reduce the number of credits, or
otherwise modify the credit release schedule accordingly.
(4) In order for mitigation credits to be released, the person or
entity that has entered into a mitigation credit agreement shall
demonstrate to the department that the appropriate performance-based
milestones for credit release have been met. The department shall
determine whether the milestones have been met and the credits may be
released.
(h) (1) Mitigation credit agreements may be used to establish the
terms and conditions under which mitigation credits can be created by
projects that improve wildlife habitat, or that address stressors to
wildlife, to an extent that quantifiably exceeds compensatory
mitigation requirements established by the department for those
projects pursuant to Chapter 6 (commencing with Section 1600) or
Chapter 1.5 (commencing with Section 2050) of Division 3. Those
projects may include, but are not limited to, the construction of
setback levees that result in the creation of more floodplain or
riparian habitat than is required to compensate for construction
impacts or the construction of transportation facility improvements
that remove barriers to fish or wildlife movement and thereby improve
the quality of habitat or address stressors to wildlife to a greater
extent than is required to compensate for construction impacts. For
those projects, the project proponent may submit a draft mitigation
credit agreement that proposes the terms and conditions under which
mitigation credits may be created and used by or in conjunction with
those projects to the department for its review, revision, and
approval. The submission may occur concurrently with, or after, an
application submitted pursuant to Chapter 1.5 (commencing with
Section 2050) of Division 3 or a notice submitted pursuant to Chapter
6 (commencing with Section 1600) or may occur after the application
or notice is submitted. Where a draft mitigation agreement is
submitted concurrently with the application or notice, the department
shall review the draft mitigation credit agreement concurrently with
its review of the application or notice and shall, to the maximum
extent practicable, complete its review of both the notice or
application and the draft agreement concurrently.
(2) Mitigation credit agreements submitted to the department
pursuant to this subdivision may comply with the requirements of
subdivision (g) with a credit release schedule related to
construction of the project that will improve wildlife habitat, or
will address stressors to wildlife, to an extent that exceeds
compensatory mitigation requirements quantifiably. For those
projects, construction of the project may be a performance-based
milestone required by paragraph (2) of subdivision (g).
(i) Nothing in this chapter is intended to limit or impose
additional conditions on the creation or sale of mitigation credits
by a conservation bank or mitigation bank approved by the department
pursuant to Chapter 7.9 (commencing with Section 1797).
(j) The creation of mitigation credits pursuant to this section
from a conservation action or habitat enhancement action implemented
within the plan area of an approved natural community conservation
plan shall not duplicate or replace mitigation requirements set forth
in the natural community conservation plan and shall require the
advance written approval of the plan's implementing entity.
Mitigation credits created pursuant to this section may be used for
covered activities under an approved natural community conservation
plan only in accordance with the requirements of the plan.
Individuals and entities eligible for coverage as a participating
special entity under an approved natural community conservation plan
may use mitigation credits created pursuant to this section only if
the plan's implementing entity declines to extend coverage to the
covered activity proposed by the eligible individual or entity.
(k) The department shall make project mitigation credit and
release information, including the demonstration submitted pursuant
to paragraph (4) of subdivision (g), publicly available on the
department's Internet Web site.
1857. The department shall collect fees or other compensation
from a person or entity that proposes to enter into a mitigation
credit agreement, and from a public agency that proposes a regional
conservation investment strategy or a regional conservation
assessment, to pay for all or a portion of the department's costs
relating to the mitigation credit agreement, proposed strategy, or
proposed assessment.
1858. The department may adopt guidelines and criteria to aid in
the implementation of this chapter. Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code does not apply to the development, adoption, or amendment of
guidelines or criteria pursuant to this section. These guidelines and
criteria shall be posted on the department's Internet Web site.
1859. (a) The department shall submit a report to the Legislature
on or before January 1, 2020, regarding the implementation of this
chapter.
(b) The report required to be submitted pursuant to subdivision
(a) shall be submitted in compliance with Section 9795 of the
Government Code.
1860. Nothing in this chapter supersedes, limits, or otherwise
modifies the Sacramento-San Joaquin Delta Reform Act of 2009
(Division 35 (commencing with Section 85000) of the Water Code) or
Division 22.3 (commencing with Section 32300) of the Public Resources
Code.
1861. The department shall approve no more than eight regional
conservation investment strategies before January 1, 2020. The
department shall not approve a regional conservation investment
strategy or regional conservation assessment pursuant to this chapter
on or after January 1, 2020, and shall not enter into a mitigation
credit agreement pursuant to this chapter on or after January 1,
2020.
